In this appeal, the defendant-appellant, City Chapel Evangelical Free Inc., also known as
City Chapel Evangelical Free Church (hereinafter "City Chapel"), challenges a trial court's interlocutory
order overruling its objections
See footnote to proceedings to condemn real estate initiated by the
defendant-appellee, City of South Bend, Indiana (hereinafter "South Bend"). After this appeal
was initiated, this Court granted transfer pursuant to Ind.Appellate Rule 4(A)(9) upon the
request of both parties and their agreement that this appeal involves a substantial
question of law of great public importance and that an emergency exists for
speedy determination. City Chapel seeks a remand to the trial court for
an evidentiary hearing on its claims that South Bend's taking of its place
of worship violates state and federal constitutional provisions protecting rights of free exercise
of religious worship and assembly.See footnote
The essential facts are not disputed. City Chapel, including its sanctuary, religious
ministry rooms, and administrative offices, is located in a four-story brick building formerly
used as a retail store. The building is one of three buildings
located in a quarter block area at the corner of Jefferson Boulevard and
Main Street that South Bend seeks to acquire for redevelopment. City Chapel
was founded in 1994 to open a church and conduct a religious ministry
in the downtown area of South Bend. It has a congregation of
approximately one hundred members. Since acquiring the building in December, 1995, City
Chapel has used it for twice-a-week worship services, Sunday school, the pastor's office,
and other purposes of City Chapel's religious ministry. The building's upper floors
are used as a parking garage.

I. Indiana Constitution

City Chapel contends that the condemnation proceeding violates its rights of free exercise
of religious worship and assembly which are protected by Sections 2, 3, and
4 of Article 1, the Bill of Rights, of the Indiana Constitution, which
provide as follows:
Section 2. All people shall be secured in the natural right to
worship ALMIGHTY GOD, according to the dictates of their own consciences.

Section 3. No law shall, in any case whatever, control the free
exercise and enjoyment of religious opinions, or interfere with the rights of conscience.

Section 4. No preference shall be given, by law, to any creed,
religious society, or mode of worship; and no person shall be compelled to
attend, erect, or support any place of worship, or to maintain any ministry,
against his consent.

City Chapel asserts that the "issue is whether the state can use its
power of eminent domain to take a church without a court conducting a
hearing to balance the competing interests of the state and the church."
Appellant's Br. at 8 (footnote omitted). Claiming that South Bend's condemnation proceeding
involves not "just a property interest in the church building. . . .
[but] infringes upon the congregation's use of the church building for the free
exercise of religious worship and assembly," City Chapel asserts that the taking "will
destroy the church."
Id. at 8, 10. City Chapel urges that,
under the Indiana Constitution, South Bend cannot take City Chapel's building without a
hearing at which South Bend is required to prove "that the need or
benefit which occasions its use of [the] police power [of eminent domain] outweighs
the restrictions imposed on City Chapel's fundamental rights of freedom of worship and
assembly." Id. at 25-26.
City Chapel contends that the Indiana Constitution protects core constitutional values which South
Bend may not materially burden. It argues that the taking of its
church building by condemnation would burden its right to religious worship under Section
2 and its right to free exercise and enjoyment of religious opinions under
Section 3. It further alleges that the rights guaranteed by Section 4
are burdened because South Bend, by pursuing this action against City Chapel but
permitting another church located in a redevelopment district to remain, gives preference to
a religious society or mode of worship.
South Bend principally argues that the Indiana Constitution's guarantees of religious protection should
be equated with that provided in the First Amendment of the United States
Constitution and that, because South Bend's condemnation action is religion-neutral, no balancing test
and thus no hearing is required. South Bend also urges that, even
if Sections 2 and 3 of Article 1 of the Indiana Constitution provide
religious protections that exceed those of the First Amendment, they only apply to
the "personal devotional aspect of religion" and that the "incidental relocation" of the
City Chapel building does not interfere with these rights. Appellee's Br. at
22. South Bend also asserts that the only constitutional inhibition on the
taking of private property for public use is the requirement of just compensation.
When Indiana's present constitution was adopted in 1851, the framers who drafted it
and the voters who ratified it did not copy or paraphrase the 1791
language of the federal First Amendment.
See footnote Instead, they adopted seven separate and
specific provisions, Sections 2 through 8 of Article 1, relating to religion.
Clearly, the religious liberty provisions of the Indiana Constitution were not intended merely
to mirror the federal First Amendment.See footnote We reject the contention that the
Indiana Constitution's guarantees of religious protection should be equated with those of its
federal counterpart and that federal jurisprudence therefore governs the interpretation of our state
guarantees.
While it prohibits government interference with religious liberty, the Indiana Constitution also affirmatively
recognizes the state's police power. It declares that government is "instituted for
[the People's] peace, safety, and well-being."
Ind. Const. art. 1, §1.
The Constitution's Preamble expressly declares its purposes to be "that justice be established,
public order maintained, and liberty perpetuated." Although it does not expressly grant
to the state the power of eminent domain, the Indiana Constitution acknowledges this
power by implication in Article 1, Section 21, which provides in part that
"No person's property shall be taken by law, without just compensation; nor, except
in case of the State, without such compensation first assessed and tendered."
In today's case, this governmental police power of eminent domain challenges the limitations
on government in the religious liberty provisions.
The analysis is guided by Price v. State, 622 N.E.2d 954 (Ind. 1993),
in which Chief Justice Shepard explained:
[I]n Indiana the police power is limited by the existence of certain preserves
of human endeavor, typically denominated as interests not 'within the realm of the
police power,' upon which the State must tread lightly, if at all.
Put another way, there is within each provision of our Bill of Rights
a cluster of essential values which the legislature may qualify but not alienate.
A right is impermissibly alienated when the State materially burdens one of
the core values which it embodies.

Id. at 960 (citations omitted). Fifteen years earlier, our Court of Appeals
had similarly observed that "churches are subject to such reasonable regulations as may
be necessary to promote the public health, safety, or general welfare," but that
"[r]easonable restrictions, however, are not tantamount to exclusion." Church of Christ v.
Metropolitan Bd. of Zoning App., 175 Ind. App. 346, 351, 371 N.E.2d 1331,
1334 (1978)(quotations marks and citations omitted). Holding that the Board contravened Article
1 of the Indiana Constitution by excluding a church from a residential area,
the court declared:
Denial by the City of Indianapolis of the use of this residential property
for religious purposes presents the classic confrontation between exercise of the police power
and a fundamental constitutional right. If the citizen fails to heed Wendell
Phillip's admonition that "Eternal vigilance is the price of liberty," encroaching government may
devour that fundamental right (and what is more fundamental than freedom of religion,
which is a vital part of freedom of thought?). Wittingly or unwittingly,
the City of Indianapolis has been guilty of such an encroachment.

Id. at 349-50, 371 N.E.2d at 1334. As emphasized in Whittington v.
State, 669 N.E.2d 1363 (Ind. 1996), "[t]he purpose of state power, then, is
to foster an atmosphere in which individuals can fully enjoy that measure of
freedom they have not delegated to government." Id. at 1368. The underlying issue sought to be presented is thus whether South Bend's proposed
taking of City Chapel's building under the state's police power of eminent domain
is a prohibited material burden, in contrast to a permissible qualification, upon the
core values of the religious protection clauses asserted by City Chapel. South
Bend's condemnation proceedings will amount to a material burden upon a core value
"[i]f the right, as impaired, would no longer serve the purpose for which
it was designed." Price, 622 N.E.2d at 960 n.7. The "material
burden" analysis looks only to the magnitude of the impairment and does not
take into account the social utility of the state action at issue.
Id.
Our methodology for interpreting and applying provisions of the Indiana Constitution is well
established. It requires:
a search for the common understanding of both those who framed it and
those who ratified it. Furthermore, the intent of the framers of the
Constitution is paramount in determining the meaning of a provision. In order
to give life to their intended meaning, we examine the language of the
text in the context of the history surrounding its drafting and ratification, the
purpose and structure of our constitution, and case law interpreting the specific provisions.
In construing the constitution, we look to the history of the times,
and examine the state of things existing when the constitution or any part
thereof was framed and adopted, to ascertain the old law, the mischief, and
the remedy. The language of each provision of the Constitution must be
treated with particular deference, as though every word had been hammered into place.

McIntosh v. Melroe Co., 729 N.E.2d 972, 986 (Ind. 2000)(Dickson, J., dissenting)(quotations marks
and citations omitted).
Sections 2, 3, and 4 of the 1851 Indiana Constitution's Bill of Rights
did not differ substantially from their predecessor provisions in Indiana's first Constitution, adopted
in 1816.
See footnote The remarks of the delegates during the 1850-51 Constitutional Convention
amplify our understanding of the framers' purposes, but do not alter the literal
meaning of the text of these sections.
When the convention debated Section 2, it considered an amendment to substitute "possess"
for "be secured" in the phrase "All men shall be secured in the
natural and indefeasible right to worship . . .," the language initially proposed
by the committee on rights and privileges.
Journal of the Convention of
the People of the State of Indiana at 165 (reprint 1936)(1851) [hereinafter Journal].
Defending the committee's draft, its chairman, Robert Dale Owen, a delegate from
Posey County, asserted:
No legislature could ever refuse to secure to the people this right without
a manifest violation of the Constitution, . . . . We provide
here in our organic law that all men shall be secured in the
right to worship Almighty God, etc. We intended by this that they
should be so secured, and it will be the duty of the Legislature
to enact such laws as will prevent any and every religious society from
being disturbed in their worship.

Report of the Debates and Proceedings of the Convention for the Revision of
the Constitution of the State of Indiana 965 (reprint 1935)(1850) [hereinafter Debates].
Likewise urging the use of "shall be secured" as proposed by the committee,
Delegate John B. Howe of LaGrange County explained its meaning:
It means, that, inasmuch as all men have a right to worship God
according to their own creed, they shall be protected in that right .
. . . The object of the provision is, that the law should
recognize the right and protect it by proper legislation; that is all.
It is simply tying up the hands of the Legislature so that
they cannot decree otherwise.

Id. The convention retained the "shall be secured" language proposed by the
committee.
We find no evidence that the principal terms were understood by the framers
and ratifiers to have meanings contrary to present usage. Contemporaneous with the
convention, the word "secure" was defined as: "To make certain, to put beyond
hazard." Noah Webster, An American Dictionary of the English Language 1000 (Mass.,
George & Charles Merriam 1856). The word "worship" was defined to mean:
"chiefly and eminently, the act of paying divine honors to the Supreme Being;
or the reverence and homage paid to him in religious exercises consisting in
adoration, confession, prayer, thanksgiving, and the like. . . . To perform
acts of adoration; to perform religious service." Id. at 1273 (emphasis in
original).
The delegates adopted Section 3 ("No law shall, in any case whatever, control
the free exercise and enjoyment of religious opinions, or interfere with the rights
of conscience.") without debate as proposed by the committee on rights and privileges.
While the convention discussions do not assist us in interpreting this section,
the text, however, is clear and unequivocal. The inclusion of the phrase
"in any case whatever" demonstrates the framers' and ratifiers' intent to provide unrestrained
protection for the articulated values. Like Section 3, there is little from
the convention debates to amplify our understanding of the language of Section 4
("No preference shall be given, by law, to any creed, religious society, or
mode of worship; and no man shall be compelled to attend, erect, or
support, any place of worship, or to maintain any ministry, against his consent."
See footnote ). The text of Sections 2, 3, and 4 is thus our
primary source for discerning the common understanding of the framers and ratifiers.
Asserting that the relocation of City Chapel's church does not impinge upon City
Chapel members' rights of conscience or ability to worship according to the dictates
of conscience, South Bend contends that the Indiana Constitution's guarantees protect only the
"personal devotional aspect of religion." Appellee's Br. at 22. We understand
this argument essentially to urge that the core values of Sections 2 and
3 encompass only the "personal devotional aspect" of worship.
At the time of the adoption of the religious liberty provisions of the
Indiana Constitution's Bill of Rights, religious worship and the exercise of religious opinion
was largely a collective activity, practiced in diverse traditions by a variety of
religious denominations. During the years between its admission to statehood and the
Constitutional Convention of 1850-51, Indiana's population multiplied over fifteenfold. When the Indiana
territory conducted a special census in 1815 as a prerequisite to petitioning for
statehood, it had a population of 63,897. 1
Charles Kettleborough, Constitution Making
in Indiana 1780-1851 at 65 (1916). By 1850, the year before Indiana
adopted its current constitution, the population was 988,416. The Seventh Census of
the United States: 1850 at 756 (1853). The influx of settlers into
Indiana reflected the "whole range of religious belief and practice," and "there was
no religious unity from the beginning and denominations had no restraints." L.
C. Rudolph, Hoosier Faiths at x (1995). While Christianity was the predominant
faith, the various denominations "engaged in flat-out, wide-open competition." Id. By
1850, Indiana included a variety of religious communities, including Methodist, Baptist, Presbyterian, Roman
Catholic, Quaker, Lutheran, Jewish, United Brethren, and Disciples of Christ. See generally
James H. Madison, The Indiana Way 98-104 (1986). Professor Madison also observes
that many Indiana residents at the time were unaffiliated with any religious congregation,
and notes that two of the delegates to the Indiana Constitutional Convention, Robert
Dale Owen and John Pettit, were considered "freethinkers." Id. at 99.
The framers' and ratifiers' respect for the variety of religious opinions and
practices is underscored by their inclusion in the Bill of Rights of Section
7 ("No person shall be rendered incompetent as a witness, in consequence of
his opinions on matters of religion.") and Section 8 ("The mode of administering
an oath or affirmation shall be such as may be most consistent with,
and binding upon, the conscience of the person, to whom such oath or
affirmation may be administered.").
Even by the time of Indiana's initial Constitution in 1816, religious liberty provisions
in other states were broadly construed. Between 1776 and 1780 eleven of
the original states adopted new constitutions and by 1789, every state except Connecticut
had adopted constitutional provisions protecting religious freedom. See Michael W. McConnell, The
Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1455 (1990). The language used in these original free exercise provisions
"defined the scope of the free exercise right in terms of the conscience
of the individual believer and the actions that flow from that conscience [and]
[n]one of the provisions confined the protection to beliefs and opinions . .
. ." Id. at 1458-1459. Eight of the states confined the
protection of conduct to acts of "worship" in contrast to the other states
which used broader language such as "practice" (Maryland) and "religious concernment" (Rhode Island).
Id. at 1459-60. The term "exercise" was defined in the relevant
time period as connoting "action." Id. at 1459.
See footnote As noted by
South Bend,See footnote
Smith v. Pedigo, 145 Ind. 361, 33 N.E. 777 (1893), provides
one of the earliest interpretations by the Indiana Supreme Court of the Indiana
Constitution's provisions concerning religion. Although not directly pertinent to its holding in
a case wherein two doctrinally disagreeing factions of a single congregation sought sole
possession of the church building, the Court generally observed that the religious liberty
clauses "take away all power of the State to interfere with religious beliefs"
and that, "[i]n other words, the law allows every one [sic] to believe
as he pleases, and practice that belief so long as that practice does
not interfere with the equal rights of others." Id. at 365, 33
N.E. at 779. By observing that the provisions protect both "belief" and
"practice," the Pedigo court understood that the Constitution guarantees more than just the
"personal devotional aspect of religion" as advanced by South Bend. Appellee's Br.
at 22.
From the literal text of Sections 2 and 3, the discussions at the
Constitutional Convention, and the surrounding circumstances, we conclude that the framers and ratifiers
of the Indiana Constitution's religious liberty clauses did not intend to afford only
narrow protection for a person's internal thoughts and private practices of religion and
conscience. By protecting the right to worship according to the dictates of
conscience and the rights freely to exercise religious opinion and to act in
accord with personal conscience, Sections 2 and 3 advance core values that restrain
government interference with the practice of religious worship, both in private and in
community with other persons.
As an additional argument, South Bend contends that the only constitutional inhibition onthe taking of private property for public use is the requirement of just
compensation. In Consumers' Gas Trust Co. v. Harless, 131 Ind. 446, 29
N.E. 1062 (1892), this Court stated:
The right of eminent domain is limited only by the Constitution, and the
only limitation in this State is, that no man's property shall be taken
by law without just compensation; nor, except in case of the State, without
such compensation first assessed and tendered. Section 21, article 1, Constitution of
the State.
It is to be exercised only when the public necessity or convenience requires
it, but when such necessity or convenience is declared by the representative of
the sovereign, the Legislature, courts cannot question the wisdom of such declaration.

Id. at 451, 29 N.E. at 1063-64. However, in both Harless and
Schnull v. Indianapolis Union Ry. Co., 190 Ind. 572, 572, 131 N.E. 51,
52 (1921), which reiterates this proposition, the issue was the "just compensation" to
be paid and the means by which it was tendered, not whether the
state's action was in potential conflict with a specific constitutional guarantee of liberty.
The language in Harless and Schnull does not authorize the State to
ignore other provisions of the constitution when acting pursuant to its powers of
eminent domain.
As the defendant in a condemnation proceeding, City Chapel is expressly authorized to
object on the grounds that South Bend "has no right to exercise the
power of eminent domain for the use sought, or for any other reason
disclosed in the complaint or set up in such objections." Ind.Code §
32-11-1-5.
See footnote A condemnation defendant may seek judicial review as to the legality
of the proceedings and whether the condemning entity has the legal authority and
right to condemn.
State ex rel. Ind. Dept. of Conserv. v. Barber,
246 Ind. 30, 35-36, 200 N.E.2d 638, 641 (1964); City of Evansville v.
Reising, 547 N.E.2d 1106, 1111, 1114-15 (Ind. Ct. App. 1989). We hold
that City Chapel may present objections to the condemnation proceeding on the basis
of claimed violations of the state constitution.
As we held in Price, the police power of the State is limited
and may not materially burden one of the core values embodied within each
provision of the Bill of Rights of Indiana's Constitution. The power of
eminent domain is a police power subject to this limitation. In this
case, because South Bend seeks to take property the loss of which City
Chapel claims will materially burden its rights embodied in the core values of
Sections 2, 3, and 4 of Article 1 of the Indiana Constitution, City
Chapel is entitled to an opportunity to present this claim.
In City Chapel's challenge to South Bend's otherwise lawful condemnation proceedings instituted pursuant
to express statutory authorization, the condemnation procedure will be presumed to be constitutional;
City Chapel must clearly overcome that presumption by a contrary showing; and, as
the challenging party, City Chapel bears the burden of proof with all doubts
to be resolved against it. See Boehm v. Town of St. John,
675 N.E.2d 318, 321 (Ind. 1996); State v. Hoovler, 668 N.E.2d 1229, 1232
(Ind. 1996).
City Chapel must establish its contention that the taking of its church building
by condemnation, under the circumstances presented in this case, materially burdens its members'
right to worship according to the dictates of conscience, the right freely to
exercise religious opinions and rights of conscience, or the right to be free
from a government preference for a particular religious society or mode of worship.
The effect of the taking must constitute a material burden, not merely
a permissible qualification, upon the core values of the clauses asserted by City
Chapel. Price, 622 N.E.2d at 960. Considering only the magnitude of
the impairment and excluding any consideration for the social utility of the proposed
condemnation, the taking will constitute a material burden on a core value only
"[i]f the right, as impaired, would no longer serve the purpose for which
it was designed . . . ." Id. at 960 n.7.
Although its constitutional challenge carries a very substantial burden of proof, City Chapel
is entitled to an opportunity to present its claim for judicial determination.

II. Federal Constitution

Distinct from City Chapel's claims under the Indiana Constitution, it also claims that
South Bend's taking of its church building violates its rights to free exercise
of religion and freedom of association
See footnote under the First Amendment of the Constitution
of the United States. As to this Part II, only Justice Rucker
has concurred, and this Part of the opinion thus represents the view of
only two justices. Although differing as to rationale, Chief Justice Shepard, Justice
Sullivan, and Justice Boehm ultimately agree that City Chapel is not entitled to
a hearing as to its federal First Amendment claims.
City Chapel contends that the trial court erred in applying the Supreme Court's
decision in
Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872,
110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), to find that South Bend's use
of statutory condemnation proceedings to take City Chapel's church is a permissible use
of religious-neutral laws of general applicability, and that South Bend is not required
to demonstrate a compelling government interest. City Chapel argues that, because its
First Amendment claim is based on the Free Exercise Clause in conjunction with
the freedom of association, it falls within the "hybrid" claim exception recognized under
Smith. Because of this, City Chapel urges that South Bend's taking of
its church building is governed by the "compelling interest" test enunciated in Sherbert
v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
City Chapel argues that it is entitled to a hearing in which the
court must determine whether South Bend meets this burden of proof.
South Bend acknowledges the hybrid claim exception language in Smith, but argues that
the right to free exercise of religion and the right to freedom of
association for religious worship are not separate rights that give rise to a
hybrid claim, but rather are both encompassed in the same right to the
free exercise of religion. South Bend also argues that the hybrid analysis
exception has received much criticism and that cases applying Smith have not treated
free exercise and free association claims as qualifying for the hybrid claim exception.
South Bend asserts that Indiana's eminent domain law is generally applicable and
religion-neutral and that an evidentiary hearing is unnecessary.
In the absence of the hybrid claim exception, the First Amendment's protection of
free exercise of religion is generally governed by the proposition that a
"law that is neutral and of general applicability need not be justified by
a compelling government interest even if the law has the incidental effect of
burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc.
v. City of Hiahleah, 508 U.S. 510, 531, 113 S.Ct. 2217, 2226, 124
L.Ed. 472, 489 (1993)(citing Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d
876).
City Chapel's contention that it qualifies for the hybrid claim exception is based
on the following language in Smith:
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated action have involved
not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction
with other constitutional protections, such as freedom of speech and of the press,
. . . . Some of our cases prohibiting compelled expression, decided
exclusively upon free speech grounds, have also involved freedom of religion, . .
. . And it is easy to envision a case in which
a challenge on freedom of association grounds would likewise be reinforced by Free
Exercise Clause concerns.
The present case does not present such a hybrid situation, but a free
exercise claim unconnected with any communicative activity or parental right.

494 U.S. at 881-82, 110 S.Ct. at 1601-02, 108 L.Ed.2d at 887-88.
Finding that the facts presented did not present such a hybrid situation, the
Smith Court explained that there is "no contention that the [state] law represents
an attempt to regulate religious beliefs, the communication of religious beliefs, or the
raising of one's children in those beliefs . . . ." Id.
at 882, 110 S.Ct. at 1602, 108 L.Ed.2d at 888.
In "envisioning" a case raising both freedom of association and free exercise, the
Smith Court directs us to Roberts v. United States Jaycees, 468 U.S. 609,
104 S.Ct. 3244, 82 L.Ed.2d 462 (1984): "'An individual's freedom to speak,
to worship, and to petition the government for redress of grievances could not
be vigorously protected from interference by the State [if] a correlative freedom to
engage in group effort toward those ends were not also guaranteed.'" Smith
494 U. S. at 882, 110 S.Ct. at 1602, 108 L.Ed.2d at 888,
(emphasis added)(quoting Roberts, 468 U.S. at 622, 104 S.Ct. at 3252, 82 L.Ed.2d
at 474). In Roberts, this correlative freedom is termed the right to
associate for expressive purposes, 469 U.S. at 623, 104 S.Ct. at 3252, 82
L.Ed.2d at 475, and is "recognized [as] a right to associate for the
purpose of engaging in those activities protected by the First Amendmentspeech, assembly, petition
for the redress of grievances, and the exercise of religion." Id. at
618, 104 S.Ct. at 3249 82 L.Ed.2d at 471.
In the ten years since Smith, the Supreme Court has not again addressed
the hybrid claim issue except for Justice Kennedy's brief observation that "[t]he only
instances where a neutral, generally applicable law had failed to pass muster, the
Smith court noted, were cases in which other constitutional protections were at stake."
City of Boerne v. Flores, 521 U.S. 507, 513-14, 117 S.Ct. 2157,
2161, 138 L.Ed.2d 624, 634 (1997). The issue has, however, received considerable
attention in other federal and state courts. Although arguably not uniformly construed
and applied, the hybrid claim exception has been acknowledged in all the federal
circuits.
See footnote State courts addressing the issue have also acknowledged the legitimacy of
hybrid claims.See footnote
While acknowledging the potential of a hybrid right exception to the general rule
announced in
Smith, South Bend maintains that freedom of association to worship is
a derivative right of the free exercise of religion and not a separate
or additional right that can be used to qualify for the hybrid claim
exception. It cites Salvation Army v. Dept. of Cmty. Affairs, 919 F.2d
183 (3d Cir. 1990), in which he Third Circuit addressed a freedom to
associate for religious purposes claim by the Salvation Army as justification for being
exempt from reporting requirements. The court agreed that the Salvation Army had
a "constitutionally secured right to associate for religious purposes," id. at 199, but
found that this did not entitle it to an exception from a neutral,
generally applicable law because the right to associate for religious purposes is derivative
of the right to free exercise. Id.
Smith itself instructs to the contrary by suggesting that the hybrid claim exception
may arise from correlative claims of freedom of association and free exercise of
religion. The right to freedom of expressive association is the right to
"associate with others, in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends." Roberts, 468 U.S. at 622, 104 S.Ct.
3252, 82 L.Ed.2d at 474. As noted above, in foreseeing a possible
hybrid claim, Smith cites specific language in Roberts that recognizes the freedom to
engage in group effort toward worship as an example of the right of
expressive association. Smith, 494 U.S. at 882, 110 S.Ct. at 1602, 108
L.Ed.2d at 888. No basis is provided in Smith to hold that
the hybrid claim exception is disqualified when the expressive association claim is based
on religious expression. To the contrary, Smith thus suggests that correlative claims
based on the right to free exercise of religion and the right of
expressive association to worship exemplify the hybrid right exception. The Supreme Court's
creation and description of the exception, from which it has not since retreated,
cannot be ignored.
The trial court erred in denying a hearing on whether South Bend's taking
of City Chapel's church building presents a First Amendment challenge on freedom of
association grounds reinforced by Free Exercise Clause concerns. In the event of
a hearing, however, to qualify for the this hybrid claim exception, City Chapel
would have to demonstrate at the hearing that South Bend's taking of its
church building would both (1) significantly affect or burden its members' right to
expressive association, see Boy Scouts of America v. Dale, 530 U.S. ---, ---,
120 S.Ct. 2446, 2452-53, 147 L.Ed.2d 554, 564-66 (2000), and (2) substantially burden
a religious practice, City of Boerne, 512 U.S. at 513, 117 S.Ct. at
2160-61, 138 L.Ed.2d at 634 (quoting Sherbert, 374 U.S. at 406, 83 S.Ct.
at 1795, 10 L.Ed.2d at 972). If City Chapel were thus able
to establish that it qualified for the hybrid claim exception, South Bend's condemnation
proceedings would survive City Chapel's First Amendment challenge only if South Bend satisfied
the requirements in Sherbert that some compelling government interest justifies the substantial infringement.
Sherbert, 374 U.S. at 406, 83 S.Ct. at 1795, 10 L.Ed.2d at
972.

III. Conclusion

We reverse the trial court's order overruling City Chapel's objections to condemnation based
on religious liberty claims under the Indiana Constitution and remand this cause for
consideration of those claims. As to City Chapel's claims under the First
Amendment to the Constitution of the United States, a majority of this Court
consisting of Chief Justice Shepard, Justice Sullivan, and Justice Boehm concludes that the
trial court did not err in overruling those objections without holding a hearing.
This cause is remanded for a hearing on City Chapel's claims under the
Indiana Constitution. As to the denial of a hearing on the federal
First Amendment claims, the trial court is affirmed.

RUCKER, J., concurs. SHEPARD, C.J., concurs as to Part I but dissents
as to Part II, with separate opinion concurring and dissenting. SULLIVAN, J.,
dissents, with separate opinion. BOEHM, J., dissents, with separate opinion.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

James A. Masters Cheryl A. Greene
Hosinski & Devetski, P.C. City of South Bend
South Bend, Indiana South Bend, Indiana

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194

March 29, 2001

SHEPARD, Chief Justice, concurring and dissenting.

I join in Justice Dicksons opinion insofar as it remands for an evidentiary
hearing on City Chapels claim that its rights under the Indiana Constitution trump
the eminent domain power of the City of South Bend (though whether they
actually do so is a question for some future day).

As for City Chapels claim under the First Amendment, I am satisfied that
it does not constitute a hybrid claim of the sort envisioned by the
brief passage quoted by Justice Dickson from Employment Div. v. Smith, 494 U.S.
872, 881-82. Largely, I think Judge Walter Stapleton was right when he
observed for the Third Circuit that assembling for purposes of worship is a
derivative of free exercise of religion and, as a corporate exercise, not entitled
to a greater level of First Amendment protection than individual exercise might command.
Salvation Army v. Dept. of Community Affairs, 919 F.2d 183, 199 (3rd
Cir. 1990). I thus conclude that City Chapel loses on its First
Amendment claim, though for reasons different from the ones identified by Justices Sullivan
and Boehm.

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194

ON PETITION FOR INTERLOCUTORY APPEAL

March 29, 2001

SULLIVAN, Justice, dissenting.

When the City of South Bend attempted to use its eminent domain powers
to acquire City Chapels place of worship, City Chapel claimed that this use
of eminent domain violated City Chapels rights under the free exercise of religion
clauses of the Indiana and federal constitutions.
See footnote
City Chapel sought a hearing
in the trial court on this claim. Finding no hearing required, the
trial court found that the citys exercise of its eminent domain power did
not violate City Chapels rights under the free exercise clauses.

In this appeal, City Chapel only asks us to order such a hearing.

On appeal, City Chapel says its rights under the free exercise clauses were
violated when the trial court did not grant it a hearing on its
claims. The opinions of Justice Dickson, Chief Justice Shepard, and Justice Boehm
each address City Chapels claims as such. To me, City Chapels appellate
claim and my colleagues analysis conflate two distinct issues with constitutional significance.
Whether City Chapel was entitled to a hearing or not is an entirely
separate issue from whether City Chapels free exercise rights were violated by the
citys exercise of its eminent domain powers.

I think this case should be analyzed in the following way. First,
we must answer as a matter of procedural law whether City Chapel was
entitled to a hearing. If we conclude that City Chapel was entitled
to a hearing, then I think that we must remand for such a
hearing before we can reach the constitutional issues. Put differently, either the
constitutional claim is ripe on the record for review  thereby invoking our
power to say what the law is  or the claim is not
ripe for our adjudication.

There are many potential sources for a right to a hearing in this
case: the Indiana Trial Rules, the eminent domain statute, the due course of
law provision of the Indiana Constitution, and procedural due process under the Fourteenth
Amendment to the Federal Constitution, among others. However, City Chapel has failed
to assert adequately a right to a hearing under any body of law.
Instead, it skips the initial inquiry into the propriety of a hearing
and concentrates exclusively on its rights under the free exercise clauses of the
Indiana and federal constitutions.
See footnote

City Chapel also fails to set out what evidence would be offered on
remand that is not available in the record. City Chapels only reference
to what it would present at a hearing is contained in the following
passage in its reply brief:
City Chapel is prepared to present evidence to the trial court that, in
other redevelopment projects, the City of South Bend has not used its condemnation
powers to take a church located in the redevelopment area. Instead the
City of South Bend has allowed the church to remain in the redeveloped
area. In this case, the City of South Bends condemnation action is
specifically directed to City Chapel and its mode of worship, because of its
non-traditional style and location, in violation of Article I, Section 4 of the
Indiana Constitution.

Appellants Reply Br. at 28. However, this passage in the brief cites
two portions of the record where City Chapels attorney made this exact point
during oral argument to the trial court on the motion for an evidentiary
hearing. The attorney also argued that the church could not afford to
move to another location. While not technically evidence, City Chapels uncontested assertions
put these points in the record and before the trial court.
See footnote
Moreover,
the lack of evidence to be gained by a hearing is put into
sharper focus by the fact that South Bend accepted City Chapels depiction of
the relevant facts on appeal. Appellees Br. at 3-4. Because of
this failure, it is difficult to see what additional benefits would be had
or interests served by remanding this case for an evidentiary hearing.

City Chapels only claim in this appeal is that it was entitled to
an evidentiary hearing. This case should have focused on the adequacy of
City Chapels assertion of such a right, not the free exercise of religion.
Because I believe that City Chapel has not adequately demonstrated a right
to an evidentiary hearing, I believe that my colleagues decide a series of
issues that we have not been asked to decide. We should not
do so.

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194

__________________________________________________________________

ON PETITION FOR INTERLOCUTORY APPEAL
__________________________________________________________________ March 29, 2001

BOEHM, Justice, dissenting.

I respectfully dissent. I agree with the majoritys conclusion that the various
provisions of the Indiana Constitution dealing with religion prevent the State from imposing
material burdens on the exercise of religious practice. I agree that this
protection extends beyond the private devotion vel non of individuals and also includes
the public and group activities associated with religious practices. And I agree
that City Chapel is an organization whose activities seem to fall well within
those protections. Thus, I agree that it follows that the City of
South Bend, an arm of government, may not exercise its right of eminent
domain in such a way as to materially burden City Chapels religious activities.
I disagree, however, that City Chapel has presented a claim that raises this
issue. To quote from City Chapels brief, which in turn quotes from
its presentation to the trial court:
[I]f we have an evidentiary hearing, what [the trial court will hear is]
not just that this is an interference, this taking will destroy City Chapel.
. . [The congregation] specifically wanted to be in the center of downtown,
and specifically wanted to be in a visible site. . . . we
had some various attempts to see if we could find an alternate location.
[There will be] testimony that there are almost no alternate locations for
City Chapel either because of size or location, but most importantly because of
price. There simply is no place else for them to go that
we can find that they possibly can afford. . . .

(Emphasis added.). There is no claim here that the site has an
independent religious significance. Cf. Pillar of Fire v. Denver Urban Renewal Auth.,
509 P.2d 1250, 1251-52 (Colo. 1973) (sect sought to enjoin a municipal urban
renewal agency from condemning a building said to be birthplace of the Pillar
of Fire denomination). Rather, City Chapels complaint is that its mission will
be materially burdened because it cannot find a home consistent with its religious
mission at a price it can afford. It seems to me that
the Indiana Constitution has taken care of this problem. In addition to
the provisions dealing with religious freedom, we also have Article I, Section 21,
which provides that no persons property shall be taken by law, without just
compensation. In view of the provisions of the Indiana Constitution cited by
the majority, just compensation for a site important to the free exercise of
religion may require more than it otherwise would.
No case has addressed the issue under our state constitutional takings clause.
In United States v. 564.54 Acres of Land, although the United States Supreme
Court rejected the condemnees claim in that case, the Court recognized that in
very unusual circumstances fair market value may not constitute just compensation under the
federal takings clause. 441 U.S. 506, 512-13 (1979) ([W]hen market value has
been too difficult to find, or when its application would result in manifest
injustice to owner or public, courts have fashioned and applied other standards. (citations
omitted)). Although that case involved a taking of property from a religious
organization, there was no claim that the free exercise of religion was burdened.
Rather, the claim was that the state should pay the cost of
developing a functionally equivalent substitute facility rather than fair market value because the
condemned property was exempt under grandfather provisions from regulations that would impose significant
costs on a new facility. Id. at 508. This claim was
rejected on the basis that the condemnee would reap a windfall if it
chose not to construct the new facility (in that case a campground for
children), id. at 515-16, and in any event a new facility would place
the condemnee in a better position than before the taking of the older
facility, id. at 517-18 (White, J., concurring).
Similarly, in State v. Lincoln Memory Gardens, Inc., 242 Ind. 206, 214, 177
N.E.2d 655, 659 (1961), this Court rejected the principle of substitution as a
means of compensation in a case not implicating free exercise of religion.
However, it is not entirely clear whether substitution means (1) replacement cost or
(2) the amount necessary to put the condemnee in the same position as
before the taking. The two are not necessarily the same because the
latter may be accomplished by giving the condemnee a replica of the condemned
asset, but may also be achieved by providing a different asset of equivalent
value. In any event, just compensation is demanded by our constitution.
In the overwhelming majority of cases, fair market value will constitute just compensation
to the condemnee. Ordinarily, a claim of unique value to the owner
will not overcome that presumption. But where a taking is shown to
infringe upon a core value, I would conclude that just compensation under the
Indiana Constitution requires placing the owner in a substantially equivalent position as before
the taking.
Here, the contention is that City Chapel needs more than fair market value
to place it in the same position as before the takingan operator of
a facility positioned to serve the constituency required by its religious mission.
If the trier of fact at the valuation stage agrees, this would provide
a basis for compensation above the amount the property would command in the
hands of a secular owner. But in my view, City Chapel has
not presented a claim that, if established, would stop the Citys condemnation in
its tracks. Rather, even assuming the Chapel can establish what it claims,
money, not a permanent barrier to downtown redevelopment, is the cure.
If the City is willing to accept the risk that City Chapel can
establish that it requires more than the fair market value of the property
to permit City Chapel to replace the condemned facility in a location and
manner that are necessary to its religious mission, that is the Citys decision.
Fair market value is usually defined as the price upon which the
hypothetical willing buyer and willing seller can agree. Area Plan Commn v.
Major, 720 N.E.2d 391, 398 (Ind. Ct. App. 1999). But if this
formula is inadequate to avoid a material burden on the Chapels exercise of
religion, the City may have to pay more to achieve just compensation than
it would if it were condemning a secular site. Given the Chapels
representation that this is a dispute over money, not religious principle, even if
the Chapel proves all it claims, the solution is in dollars, not injunctive
relief. In short, I do not believe that the Chapels claim presents
anything to be heard as to the taking, although it may be highly
relevant to fixing the just compensation owed to the Chapel.
I agree with Justice Sullivan that the threshold issue is whether City Chapel
is entitled to a hearing at the taking stage of this eminent domain
proceeding. However, it seems to me that whether a hearing is required
is determined by the issues raised by City Chapel. If its claims,
if proven, would constitute a bar to the taking, it seems to me
that City Chapel is entitled to a hearing in which it has the
opportunity to prove them, just as any landowner may present the facts that
support any legally recognized defense to the taking. See Dohany v. Rogers,
281 U.S. 362, 369 (1930) ([The] requirements [of due process] are satisfied if
he has reasonable notice and reasonable opportunity to be heard and to present
his claim or defense [to the taking].); Derloshon v. City of Fort Wayne
ex. rel. Dept of Redevelopment, 250 Ind. 163, 171-72, 234 N.E.2d 269, 273-74
(1968) (At some place in the [eminent domain] proceedings, and by some method
the landowner is entitled to contest the legality of the condemnation proceedings, and
question the authority under which the attempt is being made to take his
property . . . .) (quoting Cemetery Co. v. Warren Sch. Township, 236
Ind. 171, 178, 139 N.E.2d 538, 541 (1957) (citations omitted)).
See footnote
Because I
do not believe City Chapel has presented a claim that bars the taking,
I believe no hearing is required. But if such a claim had
been raised, I would agree that City Chapel would be entitled to its
day in court to present its proof.
Finally, I agree with Chief Justice Shepard that a hybrid claim requires at
least something more than collective religious exercise to add a right of association
to the religious exercise rights of the complainants. For the reasons given
above, however, I disagree that under the state constitution a hearing is required
on the taking as opposed to the compensation phase of the Citys exercise
of its right of eminent domain.

Footnote:
Pursuant to Ind.Code § 32-11-1-5, a defendant in a condemnation action "may
object to such proceedings on the grounds that the court has no jurisdiction
either of the subject-matter or of the person, or that the plaintiff has
no right to exercise the power of eminent domain for the use sought,
or for any other reason disclosed in the complaint or set up in
such objections." In the event such objections are overruled, such defendant may
initiate an immediate appeal.
Id.

Footnote:
Noting that City Chapel's objections included claims that the proceedings violated Article
1 of the Indiana Constitution and the Free Exercise Clause of the First
Amendment of the United States Constitution, the trial court ruled that City Chapel
"is not entitled to an evidentiary hearing on its constitutional challenges to the
taking." Record at 108. The court's ruling was based on its
conclusion that "the Indiana eminent domain laws pursuant to which the City of
South Bend seeks to take City Chapel's property are religious-neutral laws of general
applicability and that the city is not required to demonstrate a compelling government
interest."
Id.

Footnote:
The First Amendment provides in relevant part: "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof. .
. ."
U.S. Const. amend. I.

Footnote:
We observe further that Article 1, Section 5 of the Indiana Constitution
("No religious test shall be required as a qualification for any office of
trust or profit") is similar but not identical to its federal counterpart in
Article 6 of the United States Constitution ("no religious test shall ever be
required as a qualification to any office or public trust under the United
States").Footnote:
Compare Ind. Const. art. 1, § 2 (1851)("All men shall be secured
in the natural right to worship ALMIGHTY GOD, according to the dictates of
their own consciences."), with Ind. Const. of 1816 art. I, § 3 ("That
all men have a natural and indefeasible right to worship Almighty God, according
to the dictates of their own consciences"); compare Ind. Const. art. 1, §
3 (1851)("No law shall, in any case whatever, control the free exercise and
enjoyment of religious opinions, or interfere with the rights of conscience."), with Ind.
Const. of 1816 art. I, § 3 ("That no human authority can, in
any case whatever, control or interfere with the rights of conscience"); compare Ind.
Const. art. 1, § 4 (1851)("No preference shall be given, by law, to
any creed, religious society, or mode of worship; . . . "), with
Ind. Const. of 1816 art. I, § 3 ("no preference shall ever be
given by law to any religious societies, or modes of worship; . .
."). Footnote:
As originally drafted and proposed by the committee on rights and privileges,
the section included the phrase "No discrimination shall be made by law between
religious societies, nor preference be given by law to any mode of worship."
Journal at 166. The present language, drawn from the original 1816
Constitution, resulted from an amendment offered by Delegate John S. Newman of Wayne
County. Id. at 349. This change is not significant to the
issue before us. Footnote:
The American Edition of Samuel Johnson's A
Dictionary of the English Language
(Phila. 1805) defined "exercise" as "labour of the body," "use; actual application of
any thing," "task; that which one is appointed to perform," and "Act of
divine worship whether public or private." Id.

Footnote:
Appellee's Notice of Add'l Authorities at 2.Footnote: The objection filed by City Chapel alleged in part that South
Bend's attempt to take City Chapel's property by condemnation "is an unconstitutional interference"
with City Chapel's religious freedom rights under the First Amendment to the United
States Constitution and under Article 1 of the Indiana Constitution. Record at
28-29. Footnote: City Chapel refers to this claim in various ways,
e.g. the right
to assemble for worship, the right of assembly, and the freedom of association.
Noting this variation, South Bend interprets and addresses the claim as one
of freedom of association. Appellee's Br. at 13 n.8. City Chapel
confirms this understanding. Appellant's Reply Br. at 1.

Footnote:
Hill-Murray Fed. of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857 (Minn.
1992)(recognizing hybrid situation language but finding no applicability to these facts, but retaining
compelling state interest balancing test under state constitution); Health Serv. Div. v. Temple
Baptist Church, 814 P.2d 130 (N.M. Ct. App. 1991)(acknowledging hybrid rights language, but
finding no exception to Smith's holding as Church could not assert parental right
to direct children's education); New York State Emp. Rel. Bd. v. Christ the
King Reg'l High Sch., 682 N.E.2d 960 (N.Y. 1997)(acknowledging hybrid claim language, but
finding it inapplicable where school asserting parental rights); First United Methodist Church of
Seattle v. Hearing Examiner for Seattle Landmarks Pres. Bd., 916 P.2d 374 (Wash.
1996)(recognizing hybrid rights exception where church claimed infringement of free exercise and free
speech); First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174
(Wash. 1992)(accepting hybrid claim of free exercise and free speech). Footnote:
U.S. Const. amend. I (Congress shall make no law prohibiting the
free exercise [of religion]); Ind. Const. art. I, §§ 2, 3, 5, and
7.Footnote:
Essentially, City Chapel asserts a right  free exercise of religion 
and seeks a procedure for vindicating that right  an evidentiary hearing 
without any discussion of the propriety of that form of vindication. Its
lengthy discussion of the underlying constitutional issues does not illuminate the necessary step
of determining the efficacy of an evidentiary hearing in this context. Footnote: This deficiency in City Chapels argument must also be viewed through the
procedural posture of the case. The trial court initially granted City Chapels
request for a hearing. After hearing oral argument on purely legal grounds,
the trial court changed course and denied the hearing. This denial was based
on South Bends constitutional arguments, which means that the trial court implicitly determined
that as a matter of law City Chapel could present no evidence that
would override South Bends power to condemn the building. We review such
legal determinations de novo.
See Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.
2000) ([W]here the issue presented on appeal is a pure question of law,
we review the matter de novo.). Under our de novo standard of
review, we must view the record in the light most favorable to City
Chapel. Cf. Schulz v. State, 731 N.E.2d 1041, 1043-44 (Ind. Ct. App.
2000) (holding that under de novo review of a motion to dismiss, court
must evaluate the [facts] in the light most favorable to the plaintiff with
every inference in [its] favor.), transfer denied. Because we may presume the
facts that City Chapel has adequately asserted in its objections and at oral
argument before the trial court, a hearing would not bring to light any
information not already presented in the record.

Footnote:
In Dohany, the landowner challenged the taking under a statute that
he claimed provided for a process that fell below federal due process requirements.
281 U.S. at 366-67. In Derloshon, the landowner argued that he
was denied due process when he was not given a hearing on his
claim that the taking was for a private rather than a public purpose.
This Court reversed and directed the trial court to hold a
hearing. 250 Ind. at 165-66, 175, 234 N.E.2d at 270, 276.